Journal of Contemporary Health Law & Policy
Volume 7 | Issue 1
Article 9
1991
Threats to Secret Service Protectees: Guidelines on
the Mental Health Services Provider's Duty to
Report
Samuel Jan Brakel
Lauren Topelsohn
Follow this and additional works at: http://scholarship.law.edu/jchlp
Recommended Citation
Samuel J. Brakel & Lauren Topelsohn, Threats to Secret Service Protectees: Guidelines on the Mental Health Services Provider's Duty to
Report, 7 J. Contemp. Health L. & Pol'y 47 (1991).
Available at: http://scholarship.law.edu/jchlp/vol7/iss1/9
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THREATS TO SECRET SERVICE PROTECTEES:
GUIDELINES ON THE MENTAL HEALTH
SERVICES PROVIDER'S DUTY TO
REPORT
Samuel Jan Brakel * and Lauren Topelsohn**
This article presents a set of proposed guidelines for mental health care
providers faced with the not uncommon problem of having a patient under
treatment who makes statements that can be interpreted as threatening the
life of the President of the United States or another protectee of the Secret
Service. What is the provider's duty in this situation? When should such a
"threat" be reported? What should be reported? And to whom? The questions are difficult ones that confront both the dictates of the federal presidential threat statute and the general duty-to-warn law of the state where the
provider resides and practices. Professional ethics and common sense must,
of course, also figure in the calculus of the proper course of action.
This article begins with a brief history of the Secret Service, its formal
responsibilities, as well as its evolving contacts with the mental health community, driven by the Service's own recognition of the need for mental
health expertise in evaluating the intentions and capacities of those who issue presidential threats. Next, this article presents the guidelines themselves,
followed by commentary that sets out their legal, ethical, and pragmatic
underpinnings.
INTRODUCTION
The Secret Service was established in i865 as a law enforcement division
of the United States Department of the Treasury. Its sole original purpose
was to investigate and suppress counterfeiting, a problem that evolved from
the Civil War experience when the Federal Treasury in 1862 began issuing
United States notes to help finance the war effort. Prior to that time the
United States had no national currency.'
* B.A., 1965, Davidson College; J.D., 1968, University of Chicago Law School.
Faculty, DePaul University College of Law; Research Staff, The Isaac Ray Center, Chicago.
**
B.A., 1986, Barnard College/Columbia University; M.A., 1987, Columbia University
School of Arts and Sciences; J.D. candidate, 1991, Northwestern University School of Law.
1. For a brief history of the Secret Service, see Carney & Baker, Relationships Between
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Journal of Contemporary Health Law and Policy
[Vol. 7:47
Though the Service's mission was marginally broadened during the remainder of the nineteenth century, and grew to encompass the control of
pension and bank fraud along with various less formal investigative tasks, it
was not until the assassination of President McKinley in 1901 that Congress
expanded the agency's responsibility to include what today has arguably become its primary, and certainly most visible, objective: The protection of the
President of the United States.2 Even then, the authorization was euphemistically justified as part of the appropriation designed to combat counterfeiting and "related" crimes. It took another five years for a more direct, albeit
still minimal, acknowledgement of this aspect of the Agency's functions. In
1906 Congress added a single line to the Service's general appropriation,
authorizing the "protection of the person of the President of the United
States." 3
In the next ten years at least seventeen bills were introduced in Congress
seeking to institutionalize the Service's responsibility to protect the President, including one that proposed a constitutional amendment making Presidential assault a federal crime. 4 Each, however, was defeated. 5 But
America's entry into World War I changed the Congressional attitude and
resulted in a legislative enactment that finally ensured the centrality of the
Service's Presidential protective function within its larger mandate. In 1917
Congress passed the "Presidential Threat Statute," which made it a federal
crime to "knowingly and willfully [threaten, by writing or deed,] to take the
life of, or to inflict bodily harm upon the President of the United States." 6
the U.S. Secret Service and the Behavioral and Social Sciences, 4 BEHAV. SC. & L. 437 (1986)
[hereinafter Carney].
2. Id. at 439.
3. Id.
4. Id. at 439-40.
5. Id. at 439.
6. Public Laws of Sixty-Fourth Congress, ch. 64, 39 Stat. 919 (codified as amended at 18
U.S.C. § 89 (1982)). With minor changes in phraseology, the statute reads:
Whoever knowingly and willfully deposits for conveyance in the mail or for delivery from any post office or by any letter carrier any letter, paper, writing, print,
missive, or document containing any threat to take the life of, to kidnap, or to inflict
bodily harm upon the President of the United States, the President-elect, the Vice
President or other officer next in the order of succession to the office of President of
the United States, or the Vice President-elect, or knowingly and willfully otherwise
makes any such threat against the President, President-elect, Vice President or other
officer next in the order of succession to the office of President, or Vice Presidentelect, shall be fined not more than $1,000 or imprisoned not more than five years, or
both.
18 U.S.C. § 871(a) (1982).
The category of Secret Service protectees, as originally established, included the "Presidentelect, the Vice President or any other officer next in the order of succession to the office of
President." This category has subsequently been expanded to include certain other specified
1991]
Threats to Secret Service Protectees
The purpose of the statute is to secure the President's personal safety and
to ensure that Presidential duties may be carried out free of any interference.7 Correlative to the protective responsibility, the Secret Service also has
enforcement power, authorizing it to "detect and arrest any person who violates ... section ... 87 1.,8
Although section 871 criminalizes a form of speech, and thus potentially
conflicts with first amendment guarantees, 9 it has only been extensively reviewed by the United States Supreme Court in Watts v. United States.1 °
federal officials, visiting dignitaries, and relatives of primary protectees. See 18 U.S.C. § 878
(1982); 18 U.S.C. § 879 (1982). For a brief survey of the historical background of the Presidential Threat Statute, see Finer, Mens Rea, The First Amendment, and Threats Against the
Life of the President, 18 ARIz. L. REV. 863 (1976).
Even with the enactment of 18 U.S.C. § 871, the Secret Service remained without permanent
authorizing legislation (and thus remained entirely dependent on annual Congressional approval and appropriations) for another 34 years. The Service's precarious legislative status did
not change until President Truman's signing of Pub. L. No. 82-79, 65 Stat. 122 (1951), which
authorized 'the agency's existence. See Carney, supra note 1,at 441.
7. According to the House Report:
This bill is designed to restrain and punish those who would threaten to take the life
of, or to inflict bodily harm upon, the President of this Republic. It is the first and
highest duty of a Government to protect its governmental agencies, in the performance of their public services, from threats of violence which would tend to coerce
them or restrain them in the performance of their duties.
H.R. REP. No. 652, 64th Cong., 1st Sess. 1 (1916).
8. 18 U.S.C. § 3056(b) (1982). Under the direction of the Secretary of the Treasury, the
United States Secret Service is authorized to protect the following persons:
(1) The President, the Vice President (or other officer next in the order of succession to the Office of President), the President-elect, and the Vice President-elect;
(2) The immediate families of those individuals listed in paragraph (1);
(3) Former Presidents and their spouses for their lifetimes, except that protection
of a spouse shall terminate in the event of remarriage;
(4) Children of a former President who are under 16 years of age;
(5) Visiting heads of foreign states or foreign governments;
(6) Other distinguished foreign visitors to the United States and official representatives of the United States performing special missions abroad when the President
directs that such protection be provided; and
(7) Major Presidential and Vice Presidential candidates and, within 120 days of
the general Presidential election, the spouses of such candidates. As used in this
paragraph, the term "major Presidential and Vice Presidential candidates" means
those individuals identified as such by the Secretary of the Treasury after consultation with an advisory committee consisting of the Speaker of the House of Representatives, the minority leader of the House of Representatives, the majority and
minority leaders of the Senate, and one additional member selected by the other
members of the committee.
The protection authorized in paragraphs (2) through (7) may be declined.
18 U.S.C. § 3056(a) (1982).
9. For a detailed discussion of the first amendment implications with respect to the Presidential Threat Statute, see Finer, supra note 6.
10. 394 U.S. 705 (1969).
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Journalof Contemporary Health Law and Policy
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That case involved a threat made by the defendant/petitioner Watts while he
was attending a political rally against the Vietnam War. During a "discussion session," Watts, then 18 years of age, was quoted by an investigator for
the Army Counter Intelligence Corps as having said: "I have already received my draft classification as 1-A and I have got to report for my physical
this Monday .... I am not going. If they ever make me carry a rifle the first
man I want to get in my sights is L.B.J.""
On the basis of this statement, a jury convicted the defendant of feloniously threatening the President. 2 The Supreme Court reversed the conviction. 3 As part of its reasoning, the Court examined the context of the
statement, emphasizing that it was made during a political debate and that
the response of the listeners was one of laughter. The Court then defined the
state's burden to require proof of a "true threat," and determined that the
"kind of political hyperbole indulged in by petitioner [does not fit] within
14
that statutory term."'
The rationale of Watts, a section 871 case, dovetails with the Secret Service's general protective responsibility under section 3056, which suggests an
inquiry into the seriousness of the threat in deciding whether or how to proceed in any given case. The inquiry is analogous to determining "dangerousness" (in a pragmatic sense)-a difficult assessment to make under any
circumstances.' 5 With respect to Presidential threateners, however, the matter is further complicated by the fact that a high percentage of the individuals who come to the attention of the Secret Service in domestic protective
intelligence cases "appear to have serious mental problems, as manifested by
bizarre behavior or histories of institutional treatment for mental disorders."' 16 Or, as another study has concluded, "[tihe most common type of
threatener [is] a chronic mental patient with at least three previous psychiat11. Watts, 394 U.S. at 706.
12. Id.
13. Id.
14. Id. at 708. Watts did not address the definition of a "knowing" and "willful" threat.
These statutory requisites remain to be interpreted by the Court.
15. There is a wealth of literature on the uncertainty and complexity of predicting "dangerousness." See, e.g., Dershowitz, Psychiatry in the Legal Process: A Knife that Cuts Both
Ways, 4 TRIAL 29 (1968); Diamond, The Psychiatric Prediction of Dangerousness, 123 U. PA.
L. REV. 439 (1974); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping
Coins in the Courtroom, 62 CALIF. L. REV. 693 (1974).
16. Fein, Interaction With the United States Secret Service: Views of a Mental Health Professional, 2 BEHAV. SCI. & L. 169, 170 (1984) (reports on estimate of 80-90%). Michael S.
Smelser, Deputy Assistant Director of the Secret Service's Office of Protective Research, in a
presentation to the American Academy of Psychiatry and Law, reported that "close to 50% of
all individuals brought to our attention for having threatened the President have some history
of mental illness" and that rate goes up to "over 90%" for those judged to be a real danger.
M. Smelser, Remarks at the Meeting of the American Academy of Psychiatry and Law (Wash-
1991]
Threats to Secret Service Protectees
ric hospitalizations."' 7
As a result, the investigating Secret Service Special Agent frequently must
assess the psychological state of the threatener in determining what action to
take. If the subject appears to present a danger to a Secret Service protectee,
any of a range of monitoring and intervention strategies may be called for,
up to and including arrest. Formal arrest, however, is infrequent and is effectuated in less than three percent of all threat cases reported to the Service. 8 Surveillance of the threatener or possible referral to a mental health
agency are often the preferred alternatives. These options may also be involved in cases where there is little direct danger, but serious disturbance
and increasing risk may result absent clinical intervention. 9 In short, the
Secret Service, though fundamentally a law enforcement agency empowered
to enforce a federal criminal statute, has of necessity become involved in
making mental health decisions.
While mental disturbance is an all too common characteristic among individuals who threaten the President, 20 it in itself provides few clues as to
dangerousness. Among the "sane" who issue Presidential threats, there are
those who must be taken seriously and others, as in Watts, who need/should
not. The distinction may not always be easy to make. When mental disturbance is involved, the matter only becomes more complicated. A separation
must then be made between a disordered person capable of, and intent on,
doing harm and the "harmless nut." In this task-a daunting one even for
the trained mental health professional-the agent must make elusive decisions: (i) whether the act of making the threat essentially serves the distorted
psychological needs of the subject, e.g., the threat may represent primarily a
demand for attention or assistance in coping with the underlying illness; (ii)
whether the threatener is merely seeking to be arrested or hospitalized in
order to obtain basic needs like shelter, food, and clothing; or (iii) whether
the threatener is determined to carry out what he has verbalized. 2 '
ington, D.C. Oct. 19, 1989) (available at the Office of Protective Research, United States Secret
Service, 1800 G Street, N.W., Washington, D.C. 20223, (202) 535-5725).
17. Logan, Reuterfors, Bohn & Clark, The Description and Classification of Presidential
Threateners, 2 BEHAV. Sci. & L. 151, 164 (1984) [hereinafter Logan].
18. See Smelser, supra note 16.
19. According to Smelser, supra note 16, the Agency is instrumental in the commitment
of three times as many persons as it arrests.
20. See generally Fein, supra note 16; Logan, supra note 17; Smelser, supra note 16.
21. According to Dr. Fein, there are several reasons for nondangerous mentally disordered individuals to seek out contact with the Secret Service:
The first one is that systems of mental health care have broken down for a significant
segment of the population ....The Secret Service is contacted by many [chronically
mentally ill] persons who have been "deinstitutionalized," [and who have been unresponsive to conventional psychiatric treatments]. Threatening the president is a rela-
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Journalof Contemporary Health Law and Policy
[Vol. 7:47
Studies of individuals who have made serious threats have tried to explore
the relationship between dangerousness and mental illness. Scientists working at the Medical Center for Federal Prisoners in Springfield, Missouri and
the United States Probation Office for that district have confirmed that
"[d]angerousness in [the cases reviewed] did not appear to be a function of
psychosis alone but of other features in their history.... [T]he six characteristics of dangerous threateners are potential to inflict harm, proximity,
purpose, plan, propensity for violent crimes, and preoccupation with killing
the President."2 2 In his article A Study of PresidentialAssassins, Dr. Marshall N. Heyman, Director of the Behavioral Assessment Systems Center in
Falls Church, Virginia, provides a more specific (not to mention less circular) profile.23 Dr. Heyman reviewed and distilled the files of twenty-two persons considered dangerous by the Secret Service. What emerged from his
analysis were the following common characteristics:
1. The subject is a loner who withdrew from normal social activity and turned inward.
2. As a corollary of being a loner, the subject is friendless.
3. All the subjects had poor relationships with the opposite sex.
4. All subjects were alienated from their families and from their
origins.
5. None of the subjects displayed any interest in joining mainstream establishment groups.
6. Each had a history of inadequate school performance.
7. Similarly, each had a history of inadequate job performance.
For the most part, they were either chronically unemployed,
or given to fitful and underproductive job experiences.
tively low-cost method by which to have one's needs attended .... [It] permits the
person to ventilate his or her anger while often guaranteeing that he or she will be
placed in a situation (jail or hospital) where needs for food, clothing, and shelter are
taken care of. Once arrested and sent to jail or hospital, the "offender" can complain
about how terrible it is to be confined, while quietly feeling relieved of the tensions of
coping with community life....
Another reason ... is that Special Agents of the Secret Service, by and large, are
well-trained, intelligent, sensitive, professional persons. Many times their demeanor
toward mentally ill persons is a positive contrast to the behavior of mental health
staff who work in often poorly funded state mental facilities .... [The investigating
agents are] dressed in business suits ...[and are] likely to be interested in assisting
mentally ill persons to receive care.
Lastly ....the Service is prepared to move immediately to ascertain whether there
are reasons to be concerned about possible danger to its protectees. . . . [thus] insur[ing] that persons who make threats, including those who are mentally ill, will
receive prompt interviews.
Fein, supra note 16, at 173-74.
22. Logan, supra note 17, at 167.
23. Heyman, A Study of PresidentialAssassins, 2 BEHAV. Sci. & L. 131 (1984).
1991]
Threats to Secret Service Protectees
8.
9.
10.
11.
Each displayed nomadic, or wandering, inclinations.
Each subject had a dependent personality type.
The subjects lacked an adequate outlet for aggression.
In conjunction with these inadequacies, each of the subjects lacked
a compensating channel for achievement.2 4
According to Heyman, there was a single pattern of maladjustment that embraced common feelings of inadequacy or persecution, which led the frustrated individual "to view his or her target either as the personification of the
oppressive system, or as the agent through whom he or she could achieve
'one great act,' or otherwise gain instant attention and status. '25
The high number of mentally ill individuals with whom the Secret Service
comes into contact, and the importance of assessing each case accurately,
have made the Agency aware of its need for assistance from the merital
health community. 26 In 1981, two weeks before the John Hinckley Presidential assassination attempt, members of the Institute of Medicine of the National Academy of Sciences and of the United States Secret Service held a
conference in Washington, D.C. 27 The topic at issue was how to improve
the working relationship between the behavioral science community and the
Agency. 28 Three recommendations made at the meeting, which have since
been more formally incorporated into the Service's agenda, were: (1) institution of a training program for agents in mental health concepts; (2) appointment of a number of mental health professionals to serve as liaisons between
the Agency and the mental health sector; and (3) establishment of a consultation relationship between the Agency and a number of mental health experts. 29 As a result of this last recommendation, the United States
government entered into a set of consulting contracts, effective 1987, with
five psychiatric institutions in each of the following cities: Chicago, Boston,
Dallas, Washington, D.C., and San Francisco." These contracts represented a new effort by the Secret Service to inform its investigations with
concepts and data available through the mental health community.
In 1988 an article entitled Institutional Response to Inpatients' Threats
Against the President appeared in the November issue of Hospital and Com24. Id. at 140-46.
25. Id. at 131.
26. Additionally, under its Research and Training Section, the Secret Service houses its
own behavioral sciences research program, staffed and operated by an in-house psychology
team.
27. Fein, supra note 16, at 169.
28. Id.
29. See id. at 176-78.
30. This number has increased since 1984 to ten, and now includes contracts with mental
health facilities in: Atlanta, Boston, Chicago, Dallas, Denver, Los Angeles, Miami, New York,
San Francisco, and Washington, D.C.
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Journal of Contemporary Health Law and Policy
[Vol. 7:47
munity Psychiatry.3 1 The authors explored the tension between any requirement that mental health workers alert the Secret Service to threats made
against protectees by mentally ill patients, and the need to protect patients'
rights to confidentiality and freedom from self-incrimination. a2 Additionally, the authors outlined a set of guidelines for mental health institutions in
such circumstances, most significantly recommending that the clinicians not
contact the Secret Service if they conclude from their own evaluation of the
patient that there is no danger to any protectee.3 3 This proposition conflicts
directly with the Secret Service's position that it alone has the responsibility
and expertise to evaluate the "dangerousness" of a threatener to a protectee,
34
and thus all threats should be reported to the Agency.
To see whether the impasse could be resolved, the authors decided, in the
spring of 1989, to conduct a further exploration of the respective interests
and interest-conflicts between the Secret Service, the mental health community, and its patients. As the project evolved, it was decided that its product
should take the form of a new and more elaborate set of guidelines, to be
disseminated in a published article in order to stimulate reaction from the
law and mental health community. The issues clearly deserved further informed debate. The protection of the President is an obviously important
concern in its own right. To the extent that the effort to protect raises a
conflict between the Secret Service's need to know and the citizen's first
amendment rights-as it does-the matter deserves serious legal attention.
The conflict is more sharply drawn when the citizen is a mental health patient who also has confidentiality expectations arising from the therapeutic
compact with his treatment provider. Finally, the conflict's legal and ethical
ramifications are closely tied to the still developing duty-to-warn law, an
area of broad concern to lawyers and medical care providers alike.
The actual guidelines and accompanying commentary follow below. They
can stand on their own, without need for further context or explanation,
except for this final point: The guidelines, as drafted, address all mental
health services providers, public and private, institutional and non-institutional. In theory, this approach is readily defensible, but readers of preliminary drafts have questioned its pragmatic sense. The contention is that the
guidelines should be read as applying primarily to the institutional setting.
The reasons offered are as follows: (1) The guidelines propose, as a primary
element of their inherent compromise, to create screening boards as a buffer
31. Griffith, Zonana, Pinsince & Adams, Institutional Response to Inpatients' Threats
Against the President, 39 Hosp. & COMMUNITY PSYCHIATRY 1166 (1988).
32. Id. at 1166.
33. Id.at 1171.
34. Id.at 1170.
1991]
Threats to Secret Service Protectees
between the individual health care provider and the Secret Service. These
boards are most readily created and most usable in inpatient institutions.
Their establishment and implementation in the less structured outpatient environment may prove to be impractical. (2) The proposal to erect screening
boards responds in particular to the concern of institutional providers that
they avoid individual responsibility for inviting the Secret Service on the
scene, thereby giving its agents "the run of the hospital," as it has been pejoratively phrased. By mandating notification of all threats (except emergencies) to an institutional screening committee, the individual provider is
relieved of the responsibility of directly calling in the Service.
Against these points stands the counter-argument that it is precisely in the
outpatient setting where, as some propose, "all the action is." Without the
application of the guidelines to the outpatient setting, information that the
Secret Service likely wants and needs will float unreported in the unstructured world, where mentally ill persons with threatening designs (and even
their care providers) are least readily traced or controlled. From that perspective, the establishment of screening boards in the non-institutional setting may be especially desirable and deserving of special effort, whatever the
pragmatic obstacles.
PROPOSED GUIDELINES
1. Any professional licensed to provide psychiatric or psychological treatment or counseling, or who otherwise acts in the capacity of a mental health services provider, whether in an
institutional setting or not, shall, when a client in the course of
treatment or counseling makes a direct threat against a protectee of the Secret Service or indicates, either directly or indirectly, an unusual interest in a protectee or in the Secret Service,
be bound by an affirmative duty to immediately report the
threat or indication of unusual interest to the appropriate psychiatric security review board (PSRB).
(a) The location, distribution, composition and other specific
attributes of the PSRBs shall be decided by the individual
jurisdictions and/or institutions, except that mental health
services providers shall constitute the majority on any board
and that at least one of the members have a background in
law enforcement.
(b) The service provider's report to the PSRB shall adequately
specify the nature and source of the threat and the circumstances under which it was communicated.
(c) When and only when in the judgment of the service provider the threat poses an emergency-i.e., where
the danger
Journal of Contemporary Health Law and Policy
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is immidiate based on an assessment of the client's intent
and ability to harm the protectee and his proximity to the
protectee-the provider shall by-pass the PSRB and immediately notify the Secret Service and/or local law enforcement officials.
2. The PSRB shall evaluate the reported threat or indication of
unusual interest to determine:
(a) whether the threat is serious-i.e., whether the author of
the threat or indication of unusual interest (the Subject) is
likely to carry out the threat or otherwise pursue a course of
action that will endanger the protectee or interfere with the
protectee's routines and activities, and
(b) whether the threat or indication of unusual interest was
knowingly and willfully made.
(1) The standard for determining likelihood of further action on the part of the Subject shall be reasonable
probability, with residual doubts or conflicts among
PSRB members to be resolved in favor of finding such
probability.
(2) The standard for determining whether the threat is
knowing and willful shall be whether the Subject intended and understood the meaning of his statement(s).
(3) In making its determination the PSRB shall personally
interview both the reporting service provider and the
Subject as well as review the latter's medical and criminal record, if any.
3. If the PSRB finds the threat is neither serious nor knowingly
and willfully made, it shall file for its own records a report documenting its determination and it shall notify the Subject and
the reporting service provider of the same. The notification to
the service provider may, in the PSRB's discretion, include recommendations regarding such further treatment or counseling
of the Subject as is in the Subject's best medical and security
interests. The divulgence of any information regarding the
PSRB's investigation and findings to any other person or agency
shall be prohibited.
4. If the PSRB finds the threat to be either serious or knowing and
willful, or both, it shall immediately notify the Secret Service of
the threat and of the identity and known or likely whereabouts
of the Subject. The notification to the Secret Service shall specify the PSRB's findings on each element-seriousness and intent/understanding-and shall include a description of the
methods used in, and the bases for, reaching the determination.
The reporting service provider and the Subject shall also be no-
Threats to Secret Service Protectees
1991]
5.
6.
7.
8.
tified of the same. Divulgence of the PSRB's determination or
any other information pertaining to the PSRB's investigation to
any other person or agency shall be prohibited.
Upon being notified, the Secret Service shall proceed in the
manner or manners authorized under the law and with the discretion the law accords to the Agency. The Service's authority
under the situation includes:
(a) investigation of the case, including personal interviews with
the Subject and a review, upon proper application, of the
Subject's medical record.
(b) institution of civil commitment proceedings against the
Subject where the Subject is not presently institutionalized;
petitioning for the Subject's enhanced security status where
the Subject is institutionalized.
(c) arrest of the Subject.
(d) recommending that criminal charges be filed against the
Subject.
Notwithstanding the Secret Service's legal authority to proceed
in any of the foregoing manners as it deems in its discretion
proper and necessary, there shall be a presumption against
criminal processing-arrest and charge-of the Subject where:
(a) the threat was not knowingly and willfully made, as determined by the PSRB.
(b) the Subject is presently a patient at a secure institution.
In any case where the Secret Service has been notified of a
threat or an indication of unusual interest and of the identity of
the Subject, but where the Service has, in accordance with the
above stated presumption, refrained from using the criminal
process against the Subject, it shall be entitled to immediate notification by the Subject's mental health services provider of any
change in the Subject's clinical, legal or residential status and of
any other information learned by the service provider that
would increase the probability that the Subject will act upon his
statement(s).
Legislation should be proposed incorporating the principle that
mental health services providers shall be immune from legal liability for good-faith disclosures made under and in accordance
with the foregoing stipulations.
COMMENTS TO THE GUIDELINES
The law today generally establishes that mental health services providers
have an affirmative duty to take "protective action" when a patient under
their treatment threatens violence. This duty, though it may have been rec-
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Journalof Contemporary Health Law and Policy
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ognized previously as implicit in the professional ethic of providers, if not as
a matter of common sense, was first made explicit in the California Tarasoff
cases. 3 1 It has subsequently been affirmed and elaborated upon by court decisions in a number of other jurisdictions, and about a dozen states have
codified the existence of this duty.3 6
Originally, for the duty to be triggered (or liability to result for violation
of this duty), the threat would have to be directed at a specific individual or
individuals.37 However, later court cases suggested that mere specificity of
the act and location would suffice, or even that the specificity requirement
was altogether unnecessary so long as the act and the target were "foresee-
able.", 31 Once a provider learns of the threat, it must take protective action,
35. Tarasoffv. Regents of Univ. of Cal., 13 Cal. 3d 177, 529 P.2d 553, 118 Cal. Rptr. 129
(1974) (Tarasoff I), reh'g granted, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976)
(TarasoffIII). TarasoffIIIwas a reargument of the original case, requested by the defendants
and the American Psychiatric Association and granted by the California Supreme Court in
deference to the sensitivity and importance of the issues at stake. The petitioners did not profit
from this reconsideration because TarasoffIl resulted both in a stronger articulation of the
Court's earlier holding and the imposition of a broader obligation on psychotherapists. The
court reframed the duty to warn potential victims as a more general duty to protect them.
36. Since the California decisions, courts in some 20 additional jurisdictions have imposed
Tarasoff-like duties on psychotherapists. See Beck, The Psychotherapist'sDuty to Protect Third
Partiesfrom Harm, 11 MENTAL & PHYSICAL DISABILITY L. REP. 141, 141 (1987). Eleven
states have incorporated the concept into their statutory law. See CAL. CIV. CODE § 43.92
(West 1991); COLO. REV. STAT. § 13-21-117 (1989); IND. CODE ANN. § 34-4-12.4-3 (Burns
Supp. 1990); KY. REV. STAT. ANN. § 202A.400 (Michie/Bobbs-Merrill 1990); LA. REV.
STAT. ANN. § 9:2800.2 (West 1990); MASS. GEN. LAWS ANN. ch. 112, § 129A (West 1990);
MINN. STAT. ANN. §§ 148.975-.976 (West 1989); MONT. CODE ANN. §§ 27-1-1102 to -1103
(1989); N.H. REV. STAT. ANN. § 329.31 (1989); UTAH CODE ANN. § 78-14a-102 (1990);
WASH. REV. CODE ANN. § 71.05.390 (1990). By contrast (and uniquely), the Ohio legislature
has specifically rejected any common law duty to warn or protect. OHIO REV. CODE ANN.
§ 5122.34 (Anderson 1989). The Illinois Legislature just passed a statute precluding liability
for the provider's failure to warn and protect unless "the patient has communicated . . .a
serious threat of physical violence against a reasonably identifiable victim or victims." 1990 Ill.
Legis. Serv. 86-1416 (West).
37. Tarasoff involved a known and named victim. In the subsequent case of Thompson
v. County of Alemeda, 27 Cal. 3d 741, 758, 614 P.2d 728, 738, 167 Cal. Rptr. 70, 80 (1980),
the Supreme Court of California inferred that, though the target of the threat need not be
specifically named, he must at least be "readily identifiable." Justice Tobriner, the author of
Tarasoff, dissented in this case, stating that a "special relationship, such as that between the
state and a person in its custody, establishes a duty to use reasonable care to avert danger to
foreseeable victims." Id. at 760, 614 P.2d at 739, 167 Cal. Rptr. at 81.
38. The erosion of the identifiable victim requirement is evidenced by cases from a variety
of jurisdictions. The broadening of the range of individuals or circumstances to which a duty
to protect arises portends the possibility of expanded liability for the treatment provider.
Thus, Bardoni v. Kim, 151 Mich. App. 169, 181, 390 N.W.2d 218, 224, appeal denied, 426
Mich. 863 (1986), held that although the therapist's subjective knowledge of the intended victim is relevant, an objective standard applies; therefore, liability results when the therapist
"should have known of the existence and identity of the target of his patient's violence" (emphasis in original). Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 193 (D. Neb. 1980),
1991]
Threats to Secret Service Protectees
including warning the victim, notifying law enforcement authorities, initiating action to commit the patient, or any other "reasonably necessary"
steps." 9 Generally, when the provider takes any one of these steps, the duty
is discharged.'
Hence, there appears to be substantial legal foundation for the particularized inference that mental health services providers must report to the Secret
Service when aware that a patient has threatened one of the Service's pro-
tectees. 4 1 However, there is a hidden problem: When is the duty to report
triggered? Is it activated with any threat or only threats of a certain level of
likely) to be carried out,
seriousness, e.g., threats that are intended (and
42
what some courts have called "true" threats?
The Secret Service has taken the position that all threats should be reported directly to the Agency based upon its raison-d'ftre,which is to safe-
guard the lives of its designated protectees, and upon its accumulated
held that liability of the treatment provider (a VA hospital) cannot be summarily avoided
where a mental patient purchased a gun at Sears, later firing it into a crowded night club and
killing a patron. See also Division of Corrections v. Neakok, 721 P.2d 1121, 1126-27 (Alaska
1986) (duty to warn arose upon release of prisoner with history of severe psychiatric problems
into small, isolated community where possible harm to relatives was foreseeable). Those who
see a danger in this trend may find confirmation in the recent case of Schuster v. Altenberg,
144 Wis. 2d 223, 234-35, 424 N.W.2d 159, 164 (1988) (Wisconsin Supreme Court suggested
that where the defendant has been shown to be negligent-i.e., by failing to take appropriate
protective action-liability may even extend to unforeseen victims or unforeseeable events).
39. Tarasoff II, 17 Cal. 3d at 432, 551 P.2d at 340, 131 Cal. Rptr. at 20.
40. See Appelbaum, Zonana, Bonnie & Roth, Statutory Approaches to Limiting Psychiatrists'Liabilityfor Their Patients' Violent Acts, 146 AM. J. PSYCHIATRY 821, 825 (1989) [hereinafter Appelbaum]. This appears to be the prevailing interpretation of the law, though
TarasoffIII itself speaks of the duty to "take one or more of various steps, depending on the
case." Tarasoff I, 17 Cal. 3d at 431, 551 P.2d at 340, 131 Cal. Rptr. at 20 (emphasis added).
41. In addition to the President, Vice President, President-elect and Vice President-elect,
the Secret Service is empowered to protect a sizable number of "other officer[s] ... in the order
of succession," visiting dignitaries, and relatives of the primary protectees. 18 U.S.C. § 3056
(1982).
42. See Appelbaum, supra note 40, at 824. "Properly construed, the duty to protect never
required therapists to take action merely because a threat was made. Threats that therapists
deemed unlikely to be acted upon did not invoke the duty to protect because no harm was
foreseeable.... [T]he requirement that some judgment be exercised seems unavoidable." Id.
Some may find support for automatic reporting of all threats in 18 U.S.C. § 4 (1982), which
makes it a crime to conceal or fail to report a felony to law enforcement authorities. However,
there are two problems with this interpretation of the law: (1) the courts have uniformly
required active concealment rather than mere failure to report; (2) a threat that is not "true,"
"real," "actual," or "serious" is neither a felony nor a crime. See, e.g., Watts v. United States,
394 U.S. 705, 708 (1969) ("whatever the 'willfullness' [sic] requirement implies, the statute
initially requires the government to prove a true 'threat' "); United States v. Patillo, 431 F.2d
293, 297-98 (4th Cir. 1970) ("[W]here ... a true threat against the person of the President is
uttered without communication to the President intended, the threat can form a basis for
conviction under the terms of Section 87 1(a) only if made with a present intention to do injury
to the President." (citations omitted)), adhered to, 438 F.2d 13 (4th Cir. 1971).
60
Journal of Contemporary Health Law and Policy
[Vol. 7:47
expertise in evaluating threats and determining proper responses. Most
mental health services providers can be expected to resist this position as
overbroad and intrusive. They will argue that the duty to warn is narrow; it
is incurred only when the threat reaches a certain threshold of seriousness or
44
immediacy 43 (and perhaps only if the threatener is mentally competent),
and that the judgment regarding these factors is theirs to make. Mental
health services providers may find support for this position in the professional ethic, which places a premium on preserving the therapeutic relationship,4 5 in case and statutory law that explicitly protects provider-patient
confidences, 46 and perhaps in reason, which questions whether it is "reasonable," given a presumed abundance of empty threats and mere irrational
talk, to justify violating the confidential relationship in all cases. Does the
Secret Service even want to be burdened with all of this?47
Because of the divergence in interests between the Secret Service and
mental health services providers, any guidelines that are broadly accepted
must accommodate, to the extent possible, both of the opposing interest
poles. What will have to be reported when, and to whom? Formulating the
answer is complicated by certain dictates of law that appear dysfunctional to
the primary areas of concern and by critical issues that deserve legal attention but upon which the law so far has maintained a resounding silence.48
43. See supra note 42. In addition to requiring a "true" threat for the duty to protect to
arise, the law usually requires a certain level of immediacy or "imminence" of danger to the
potential victim. See, e.g., CoLo. REV. STAT. § 13-21-117 (1989); LA. REV. STAT. ANN.
§ 9:2800.2 (West 1990).
44. Section 871 requires that the threat be "knowingly and willfully" made. 18 U.S.C.
§ 871 (1982). Whether the threatener is mentally competent is, however, a questionable criterion for assessing the seriousness of the threat and thus its reportability. See infra note 63 and
accompanying text.
45. See generally Wise, Where the Public Peril Begins.: A Survey of Psychotherapists to
Determine the Effects of Tarasoff, 31 STAN. L. REV. 165 (1978) (surveying psychotherapists'
perceptions of their clinical practices and attitudes toward confidentiality following the
Tarasoff decision).
46. For a detailed discussion of the confidentiality laws, see S. BRAKEL, J. PARRY & B.
559-605 (1985).
47. A majority of the individuals assessed in these cases are not considered dangerous to a
protectee. Instead, they are part of an expanding number of the chronically mentally ill that
need mental health care, but, in many instances, are dislocated by the process of deinstitutionalization and are either incapable of pursuing their course of prescribed treatment or unresponsive to such treatment. See Fein, supra note 16, at 170-71. Increasingly, a Special Agent's time
and energies are spent investigating and referring these individuals to mental health facilities.
Hence, Dr. Fein perceives that "the United States Secret Service has become an unofficial
'outpatient treatment program' for an increasing number of chronically mentally ill men and
women, ages 18 to 60, across the country. The social service role is one neither designed by
nor wished for by officials of the Secret Service." Id. at 171.
48. For example, the thrust of the federal law relating to the protection of the President
and others (18 U.S.C. § 871 (1982) and 18 U.S.C. § 3056 (1982)) is on processing, convicting,
WEINER, THE MENTALLY DISABLED AND THE LAW
1991]
Threats to Secret Service Protectees
In addition, any guideline system must take into account the reality of
resource limitations and the strictures of custom or accepted practice. 49 All
of this suggests that the effort to develop workable and acceptable guidelines
will involve a difficult balancing act. The following sections present a pointby-point discussion of the guidelines proposed.
Section 1
The central feature of our attempt to strike an acceptable balance is the
recommendation to report initially all threats to screening boards whose authority is to decide whether the threat (and accompanying relevant information) should be forwarded to the Secret Service. We have labeled these
bodies "psychiatric security review boards" (PSRBs) after the so-named
agency established a decade ago in Oregon to deal with the commitment and
release of insanity acquittees 5 -a responsibility that is focused on the potential dangerousness of subjects, much like the assessments made in our
situation.
The requirement to report all threats to the PSRB responds to the Secret
Service's perception, which we feel is legitimate, that any threat to a pro-
tectee is a potentially serious matter and that the individual service provider
should not be left alone to decide the course of action, if any. At the same
time, there is equal merit in the service providers' view that not all threats
made by patients in the course of their treatment or counseling should be
directly reported to a law enforcement agency-which is what the Secret
Service is, in essence, no matter how much it may in practice strive to deemphasize this function. Threats against protectees are too serious as a general
matter to be left to the evaluative whim of individual treatment providers, 5
and punishing persons who are known to have made threats. The law is silent on the major
concern of identifying these persons in the first place. State law addressing Presidential protection is limited and merely reactive; it provides what information may or must be disclosed in
response to the Secret Service's request for information. See, e.g., ILL. ANN. STAT. ch. 91 1/2,
para. 812 (Smith-Hurd 1987).
49. Because an evaluation of the threat by the service provider is unavoidable in deciding
how to react, see supra note 42, is it desirable or possible to distribute mofe widely this decisionmaking responsibility? The answer is in part dependent on the availability of resources to
furnish "second medical opinions" and the pre-existence of review mechanisms-factors that
are likely to vary significantly by locale (e.g., urban vs. rural) or treatment setting (e.g., hospital vs. clinic vs. non-institutional, private vs. public).
50. ORE. REV. STAT. § 161.290 (1978) (recodified at § 161.385 (1989)); see also Brakel,
After the Verdict: DispositionalDecisions Regarding Criminal DefendantsAcquitted by Reason
of Insanity, 37 DE PAUL L. REV. 181, 244 (1988).
' 51. Tarasoff v. Regents Univ. of Cal., 17 Cal. 3d 425, 438, 551 P.2d 334, 345, 131 Cal.
Rptr. 14, 25 (1976), stipulates that psychotherapists determining whetier to take protective
action-warning the victim, instituting commitment proceedings, or reporting to law enforcement authorities-must exercise the skill, knowledge, and care that is customary within their
62
Journal of Contemporary Health Law and Policy
[Vol. 7:47
but not all individual threats are in fact so serious that they justify the maximum breach of confidentiality that automatic disclosure to the Secret Service
would entail. Mandatory reporting to a PSRB-type screening agency strikes
the proper balance.52
To give reality to patients' confidentiality interests before the PSRB, the
composition of these boards must be dominated by mental health services
providers so that providers constitute the decisionmaking majority." In response to the concern (which we presume to be a central one of the Secret
Service) that the evaluation process would suffer from a lack of hard-headed
input if only members of the so-called helping professions took part in the
screening decisions, the guidelines also stipulate that at least one of the
PSRB members have a background in law enforcement.54 The decision to be
made is, after all, not a purely clinical one, and we believe that even a minority of one such law enforcement-oriented person would exert a significant
and healthy influence on the decisionmaking process.
All other details regarding the composition of the PSRBs, as well as specifics such as location and distribution, are for the individual jurisdiction or
institution to decide. We see no need for our recommendations to specify
needlessly a concept which is novel to this particular context and to diminish
potentially its acceptability to jurisdictions and institutions around the country by taking away the discretion to tailor secondary characteristics for local
needs or limitations.5 5
professional specialty. Because this standard leaves the individual provider with a wide margin
for discretion (and error), proposals that spread decisionmaking responsibility to others within
the profession (and conceivably to some outside of it) are desirable. Sharing responsibility also
has the virtue of minimizing any infringement on the provider-patient relationship.
52. The need for a buffer between the individual therapist and law enforcement officials is
implicit in the Tarasoffreasonable-professional-judgment standard; the court will refrain from
second-guessing the judgment if made within the standard's confines. See Bednar, The Psychotherapist's Calamity: Emerging Trends in the TarasoffDoctrine, 1989 B.Y.U. L. REV. 261, 281.
Requiring psychotherapists to report to a PSRB-type mechanism may be viewed as a more
direct and concrete implementation of this buffer concept. The creation of a buffer between
the patient and psychotherapist on the one hand and the Secret Service on the other is also
consonant with the least restrictive alternative-i.e., the least infringement on the therapeutic
relationship in the context of the informational need.
53. The Oregon PSRB consists of a lawyer, a psychiatrist, a psychologist, a parole or
probation expert, and a member of the general public-e.g., two mental health professionals, a
legal professional, a person with quasi-law enforcement experience, and a lay person. Any of a
number of variants or combinations of this professional configuration may be appropriate for a
board designated to rule on what (and when) information should be divulged to the Secret
Service. Brakel, supra note 50, at 244.
54. Compare the presence of a lawyer and parole/probation officer on the Oregon board.
55. See supra note 49. Existing state-wide mechanisms, such as the Oregon PSRB or
similar security review agencies, may be used, or more local bodies, such as institution-specific
human rights committees, may be viewed as the preferred mechanism. Whether to take ad-
1991]
Threats to Secret Service Protectees
As stated in Section 1, the guidelines are intended for all professionally
licensed persons who provide psychiatric or psychological treatment or
counseling services. The objective is to include, apart from psychiatrists and
psychologists, persons such as social workers, nurses, and others who deliver
mental health-related services, whether as a full-time occupation or more
sporadically, and who thereby may be confronted with the situation the
guidelines address.5 6 Though the general duty to warn is often differentiated
according to whether it arises in an institutional setting, this distinction is
not serviceable in the context at hand. 7 The typical mental institution today is not a high security-oriented environment. Control over patients in
terms of both length and conditions of confinement tends to be low-level.
When these contemporary institutional realities are coupled with the fact
that threats against Secret Service protectees cannot be taken lightly, much
of the reasoning for providing different reporting obligations for the inpatient and outpatient settings disappears.
The information or events, described by the guidelines, that require notification to the PSRB include direct threats against a protectee as well as any
indications, direct or indirect, of unusual interest in a protectee or in the
Secret Service itself. Direct threats should require no explanation. The reason for including indications of unusual interest in protectees or the Secret
Service is to cover less direct verbalizations that may be just as much a cause
for concern as direct, threats.5 8 For example, Secret Service records contain
instances where an individual has verbalized a preoccupation with the person or movements of one or more protectees, with assassination literature
and weapons, and with the operating procedures of the Service itself, without ever tying all elements together into a direct threat against a specific
vantage of existing resources of this type, or to create new entities, is also an open issue. Much
depends on the demographic and geographic characteristics of the particular jurisdiction in
which the mechanism will operate.
56. In theory, the guidelines could address a variety of other counseling (e.g., clergy) or
custodial personnel (corrections officials, probation officers), friends and relatives, or even ordinary citizens. But it makes more practical sense to confine the reach of the directives to mental
health services providers; the confidentiality problem at the root of the dilemma facing therapists does not apply to these other officials or individuals, with the exception of the clergy.
57. Although the duty would be the same, the mechanism through which the duty is
discharged may be different.
58. Smelser spoke of the Secret Service's concern in the following terms:
[W]e are not only interested in the identification of those individuals who make statements that contain direct or conditional threats of violence against those within our
protective jurisdiction-but also those individuals who by statements of behavior
give an indication of unusal interest in a Secret Service Protectee-an interest which
might be compulsive or repetitive and which if acted upon might be regarded as
potentially threating or violent.
Smelser, supra note 16.
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Journalof Contemporary Health Law and Policy
[Vol. 7:47
protectee. To ignore these signals or to decide a priori that they need not be
reported would be grossly irresponsible. The legal basis for disclosure covers
indirect indications which should be reported. In most cases, the general
duty to warn of threats of violence requires little, if any, stretching to dis-
close indications that are specific to either persons or act or place, let alone a
duty triggered by general foreseeability concepts, like the law of some jurisdictions. Support, if it is needed, for a broad interpretation can be derived
by emphasizing that the primary objective of the legal duty to warn (and of
the Secret Service and these guidelines) is not so much to convict individuals
for making offensive statements as to protect potential victims from harm.
The use of the word "indicates" or "indications," as opposed to "ixpressions" of unusual interest, further broadens the range of reporting. We believe this usage is within the limits of the duty to warn as it is defined by the
prevailing law.59 In addition, the term "indications" places a responsibility
upon the mental health services provider to do some reading between the
lines, which would be absent with the use of the word "expressions." This is
both necessary and proper; the provider is in a position of close contact with
the patient, where a pattern of verbalizations and behavior together, possibly
with information from the patient's medical record, 6° may provide compel-
ling signals that a patient poses a danger to a protectee. Under the guidelines, providers not only may, but should, put "two and two together" rather
than hide behind the formalistic evasion that no threat has been "expressed."
Finally, Section 1 carves out an emergency exception to the standard re-
porting requirements. In cases where the danger is immediate, as per the
mental health services provider's assessment of the patient's intent and ability to carry out the threat, the provider's duty is to by-pass the PSRB and to
notify immediately the Secret Service and/or local law enforcement authori59. See Knight v. State, 99 Mich. App. 226, 237, 297 N.W.2d 889, 895 (1980) (State
under no duty to disclose to potential victims the unsubstantiated precommitment incident of
fire-setting by a mentally retarded person); Division of Corrections v. Neakok, 721 P.2d 1121,
1137 (Alaska 1986) (State has a duty to warn potential victims of parolee where potential
victims are foreseeable and identifiable). As the case law moves beyond the specific, identifiable-victim requirement toward general concepts of foreseeability, the imposition of a duty to
report threats to Secret Service protectees that are not fully explicit becomes more readily
justifiable.
60. The patient's known propensity for violence has in a number of cases been essential to
the creation of the duty to protect. See supra note 59. If psychotherapists can avoid this duty
and escape liability when they do not know of such a propensity, e.g., Brady v. Hopper, 570 F.
Supp. 1333 (D. Colo. 1983), then it is not unreasonable to place some obligation on them to be
alert to the possibility of violence or to make relevant inquiries to this effect. Alternatively,
psychotherapists might be held liable for a patient's propensity to violence about which they
should have known.
19911
Threats to Secret Service Protectees
ties.61 Reporting to the PSRB under these circumstances would be an inadequate response because of the timing of the PSRB process and the absence of
PSRB resources to deal with an emergency situation. We expect that these
emergencies will be rare; in the overwhelming majority of cases the provider's duty will be properly discharged by reporting to the PSRB.
Section 2
This Section describes the nature of the proposed PSRB inquiry. In evaluating the threat, the board should make a determination of two elements
based upon established law: (i) whether the threat is a serious one62 and (ii)
whether it was knowingly and willfully made.6 3 Only the first inquiry--on
seriousness-is critical to the protective objective. The second inquirywhether the threat was knowing and willful-is beside the point, if not
wholly irrelevant to this objective. Its place in the guidelines is primarily
because the formal law" (somewhat inappositely for the purposes of protection) makes it a central focus of the criminal conviction inquiry into threats
against protectees.
The seriousness of the threat must be determined by its likelihood to be
carried out, or rather whether its author has the intent and capacity to follow through with it. The standard by which the PSRB should make this
judgment is one of reasonable probability in the common, ordinary sense of
that term. Doubts or conflicts among PSRB decisionmakers are resolved in
favor of a finding that the likelihood exists. This is not an onerous standard,
nor should it be, for two reasons. First, a finding that the subject is likely to
follow through is neither a criminal conviction nor a determination of civil
liability. As a result, the PSRB merely notifies the Secret Service, which can
then select from a range of options for further action. Second, the risk attendant to an erroneous finding that the threat is not serious, when in fact it
is, cannot be overestimated. A determination that the threat is not serious
closes the case and permits no further notification to protective agencies or
61. The threatener's physical proximity to the protectee would be a key indicator in assessing whether the situation calls for immediate action, though not to the exclusion of other
factors bearing on the subject's physical ability and mental capacity to carry out the threat.
62. See supra notes 42-43 and accompanying text (regarding the actuality and seriousness
of threats).
63. See supra note 44 and accompanying text; United States v. Smith, 670 F.2d 921, 923
(10th Cir. 1982) (court deemed irrelevant to the threatener's conviction whether he in fact
intended or had the ability to carry out the threat). This focus on the moral blameworthiness
of an individual who threatens a protectee, as opposed to his intent and capacity for actual
harm, may be consonant with the wording of 18 U.S.C. § 871(a) (1982). However, it is less
germane to the issue of whether (and when) to report mental patients' threats.
64. 18 U.S.C. § 871 (1982).
Journalof Contemporary Health Law and Policy
66
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personnel. Without this notification there will be no further protective action, leaving the protectee exposed.
The follow-through actions (whose likelihood is at issue) include not only
those which would directly endanger the protectee but also those which
would interfere with the protectee's routines and activities. Threats that result in such an interference, where preemptive or evasive action must be
taken by the protectee, are too close to direct endangerment to be treated
otherwise.
The requirement that the threat be knowing and willful stems from the
controlling federal statute, 6 5 and many of the cases decided in actions
brought under that statute turn on interpretations of this language. 66 However, this language is designed to address whether the threatener had the
requisite criminal intent, the mens rea, to commit a criminal actfor which he
can be convicted and punished. It is germane to the protective function of
the Secret Service only in an indirect way: The conviction and incarceration
of that small proportion of threateners effectively removes their threat for
the time being. The law's focus on mens rea is, however, largely irrelevant to
the broader and more critical function of the Service (as well as these guidelines) of identifying, obtaining information on, investigating and evaluating
the threats of, and containing individuals before they are charged and tried
(if they ever are). 67 It is also irrelevant to the actual danger posed to the
protectee. An individual can make a very serious threat which he intends
(and has the physical capacity) to carry out, without having the mental capacity to fully appreciate its wrongfulness or its consequences for it to be a
knowing and willful threat in the legal sense. That lack of full cognitive
capacity, as the legal language describes it, can make the author of the threat
more dangerous as easily as less dangerous.
Rather than omit the knowing and willful criterion altogether from the
guidelines, we have sought to rationalize its application in several ways.
First, in determining whether the threat was knowing and willful, the PSRB
shall apply a standard more akin to civil compentency-i.e., whether the
subject understood and meant his statement(s). This is a slightly different,
broader, and more appropriate standard than the one implicit in section 871
which, as the court cases make explicit, inquires into mens rea or criminal
culpability. Secondly, the later sections of the guidelines minimize the consequences of a finding by the PSRB that the threat was not knowing and
willful. It does not get the threatener off-the-hook, so to speak. The Secret
18 U.S.C. § 871(a) (1982).
66. See supra note 63.
67. See infra note 72 and accompanying discussion on mental health and other disposi65.
tional choices available to the Secret Service.
1991]
Threats to Secret Service Protectees
Service will be notified; the lack of competency of the subject will raise only a
presumption against his subsequent criminal processing by the Service.
The procedures followed by the PSRB in making its determinations are
straightforward and, we assume, require no elaboration. They include personal interviews with the reporting provider and the subject, in addition to a
review of the latter's medical and criminal record. In some cases, the medical records may be more revealing of the specifically focused dangerousness
at issue here; in others, the criminal record may be more telling. The two
together, if available, are maximally informative for assessment purposes.
Sections 3 and 4
These two sections, best discussed together, detail the consequences of any
of the possible findings the PSRB can make on the elements relevant to its
inquiry.
The maker of the threat is "exonerated" (in the sense that there are no
further consequences for him) only when the PSRB determines that the
threat is lacking in both seriousness and willful and knowing intent. All
other findings-that the threat is serious as well as willful and knowing, serious but not willful and knowing, or not serious but willful and knowingshall, by the guidelines' requirements, result in a PSRB report to the Secret
Service..
The absence of a reporting mandate when neither of the two elements of
the threat is met should require no explanation. Both law and logic dictate
this conclusion. The same is true for the obverse, that PSRB notification to
the Secret Service is required when the finding is positive on both elements.
Only the in-between categories, a finding that either one or the other element
is not met, stand in need of explanation.
Where the threat is serious but not willful and knowing, the PSRB must
report to the Secret Service because the lack of full subjective understanding
on the part of the threatener of the nature and implications of his threat,
while germane to charge and conviction, is not material to the need to prevent and protect. As stated earlier, a threat made by a person who does not
have the cognitive capacity to be culpable under the criminal law may nevertheless be objectively serious. The threatener may have to be investigated or
watched, if not actually stopped. Even though he may not ultimately be
convictable, the Secret Service should be alerted.
Where the threat is not serious-i.e., there is no real intent or capacity on
the part of the subject to carry out the statement, but the threat is nevertheless knowingly and willfully made, the PSRB must report to the Secret Ser-
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Journal of Contemporary Health Law and Policy
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vice because it is a crime under section 87 1.68 As such, this threat comes
within the purview of the Secret Service's powers, or the responsibility of
other law enforcement authorities, to decide how to react. The guidelines
are not meant to vest the PSRB with quasi-prosecutorial powers.
Upon a finding by the PSRB that the threat is neither serious nor willful,
the case against the threatener is closed. The PSRB files a report on the
matter for its own records, and it notifies the reporting service provider as
well as the person who made the threat of its final determination. No other
divulgence of information regarding the inquiry is permitted. Under the
guidelines, the PSRB is permitted to make a recommendation to the individual service provider concerning the subject's further care or treatment, but
these recommendations are strictly advisory and are neither required to be
made nor followed.
Where the PSRB is required to report to the Secret Service-i.e., in all
other cases-the notification shall be both immediate and informative, including at a minimum the grounds for the PSRB's findings on each element
of the inquiry and the identity and known (or likely) whereabouts of the
subject. Notification shall also be provided to the subject himself and to the
individual service provider. No other person or agency may be notified. After receiving the PSRB's report, the Secret Service, in its discretion, determines how to proceed further, as clarified in Sections .5 and 6 of the
guidelines.
Sections 5 and 6
Section 5 sets out the various courses of action the Secret Service may take
once it has been notified by the PSRB of a specific threat and threatener.
These options derive from the formal law empowering the Service6 9 and its
attendant implications. The primary reason for cataloguing them in this section is the guidelines' objective (set forth in Section 6) of influencing these
legally authorized options in a way that comports with the principles underlying the PSRB mechanism and its particular powers and constraints. It
should be clear that the guidelines can only influence the Secret Service's
conduct. Section 6 can no more take away the Service's legal powers than
Section 5 can grant them.
Investigating the case represents the Service's minimal option-one that it
68. 18 U.S.C. § 871(a) (1982). If the PSRB finds that the threat was "competently"
made, there is little reason to shield the threatener from the consequences just because he is a
mental patient. The expression of moral approbation would not necessarily be lost on such a
patient. Whether the Secret Service would want to throw the full weight of the law against the
individual is another matter.
69. 18 U.S.C. § 3056 (1988).
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can be expected to exercise in each and every instance. The results of the
investigation will furnish the basis for determining what other steps need be
taken, including the possibility that no further action is required.
Further action may come in the form of instituting civil commitment proceedings against the individual who made the threat. That option is frequently and increasingly taken by the Service, its records showing that it was
instrumental in the commitment of some eleven percent of the cases brought
to its attention in 1988, contrasted with less than one percent in 1976.70 The
figures may be interpreted to show that the Service is cognizant that there
are many threateners who have deep mental or emotional problems and that
it is not interested per se in criminally prosecuting them or in obtaining convictions. Petitioning for additional security measures against an individual
who is already hospitalized is a theoretical possibility: No data are available
to show whether the Service actually attempts or has attempted to do this.
Civil commitment may be preceded by an arrest of the subject, though it is
not a necessary prerequisite. The available data do not tell what the practice
is. Arrest is, of course, the first step in instituting criminal proceedings.
However, the Secret Service arrests only a fraction of the individuals who
come to its attention-less than three percent of the cases reported over the
past twelve years. Like the commitment data, the arrest figure is proffered
by the Service to show that it is hardly hell-bent on throwing the criminal
process at persons who issue threats against its protectees. Mental health
services providers and civil libertarians may be comforted by this.
If criminal processing is warranted, arrest will be followed by the lodging
of a formal criminal charge against the subject. 7 ' The Secret Service itself
does not file charges-that is the function of the Office of the Attorney General-but it undoubtedly has everything to do with that eventuality. The
available data do not reveal what proportion of arrests is followed by a criminal charge. One suspects that it is high. Agency representatives indicate
that some thirty percent of arrests are ultimately dropped in favor of mental
health processing.7 2 But most of the remainder appear to be carried through
to charge and conviction. This pattern, too, may be seen to confirm the
Service's effective use of discretion in deciding whether and when to invoke
the criminal process..
The purpose of Section 6 of the guidelines is to reinforce the Secret Service's demonstrated selectivity in using the criminal process against threat70. Smelser, supra note 16.
71. 18 U.S.C. § 871(a) (1982). The penalties are a fine of not more than $1,000 or imprisonment for not more than five years, or both.
72. Smelser, supra note 16.
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eners in two classes of cases: (i) individuals who, according to the findings of
the PSRB, did not make the threat in a knowing and willful fashion, and (ii)
individuals who are already housed in secure mental institutions.7 3 The former class is likely to be composed of persons with serious mental problems
for whom treatment-oriented dispositions, including commitment, are more
appropriate than criminal punishment and imprisonment, and who may not
be convictable in the first place.7 4 By calling for a presumption against criminal processing, the guidelines are not so much urging the Service to change
its practices as for it to accord due deference to the PSRB's judgment in
continuing the practice of "diverting" mentally incompetent threateners.
The recommendation not to use the criminal process against individuals in
secure institutions is based upon the assumption that this class is likely to
include many persons with serious mental impairments who are already securely confined, making the quest to incarcerate them redundant as well as
inappropriate.
Section 7
The guidelines in this section seek to provide a reward for, and thus, an
inducement to, the exercise of Secret Service restraint in using the criminal
process against the classes of individuals singled out in Section 6. It obligates the provider to report to the Secret Service all subsequent changes in
the subject's mental condition, his legal or residential status, and any other
facts that would indicate that the subject is posing a heightened danger to
the protectee(s). This recommendation in the guidelines is more than a mere
trade-off to increase political salability. Under the circumstances, the need
for the Service to have the information is real. The infringement on confidentiality is minimal. The patient has already been identified to the Service.
His threats have already been evaluated and action has already been taken in
their regard. The new information required to be reported is not on the level
of an initial disclosure of statements made in the expectation of therapeutic
trust.
Section 8
The final section of the guidelines urges the enactment of legislation that
would immunize from liability providers who act in accordance with the
guidelines' terms. This is not only in the interest of fairness, but it would
73. The emphasis here is very much on secure facilities. Today, there is insufficient secur-
ity and control over patients in the average mental hospital.
74. This assumes that the PSRB's findings are reasonably consonant with judicial findings. There is no reason to suppose they would not be, at least not in the direction of the
PSRB's finding a competent person who would not be convictable.
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also serve to promote compliance with the guidelines. Without a liability
limitation, the guidelines could still be useful in promoting uniformity of
conduct and expectations. With it, they are likely to be more effective in
achieving this objective.
CONCLUSION
There are two questions we would like to have answered regarding the
proposed guidelines, and, in particular, their central suggestion to create
PSRB-type screening boards for the initial decision to report a threat or not:
(1) their acceptability in theory by the mental health services community
and by the Secret Service agency; (2) their practicability in the real world of
patients, providers, Agency agents, and board decisionmakers.
On the first score-acceptability in theory-we already have some information via reactions that have been communicated informally. We believe it
would be useful to have more formal reactions as well, and we hereby invite
such for submission to and consideration by The Journal of Contemporary
Health Law and Policy. They would, we feel, enhance the general debate
and help fill in some details we have for the moment deliberately left
untouched.
We would want reactions from both the providers' side and from the
Agency's side. "Sides" suggests opposing interests. These there are. It
would be foolish to pretend there is no conflict between the Secret Service's
preferred position on reporting and the position with which the therapist is
most likely to be comfortable. At the same time, further debate can serve to
bring the two sides together by showing there is substantial mutuality of
interests. Guidelines such as those proposed here help clarify obligations
and expectations. This can reduce legal liability (or the fear of it) among
providers, and minimize anxiety about the unknown among Secret Service
personnel. Greater clarity on what must be reported, when, and to whom,
should also produce better and more systematic information, and quite conceivably more information, which in turn should result in better decisionmaking, thereby contributing to the ultimate objective of providing the best
protection possible for those targeted to receive it from the Secret Service at
minimal risk to the interests and sensitivities of patients and their therapists.
Getting "feedback," as they say, on practicability would ideally mean doing a field test of the concept. Experimentation with the guidelines would
help tell us whether they work and how they work-pointing out the design
flaws, if any, and revealing whether the mutuality of interests that exists in
theory can be realized in practice. The empirical test would preferably explore the concept in all settings and situations. One state (or jurisdiction)
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might suffice, but within it we should select a rural as well as an urban setting, target private as well as public provider entities, and try out the institutional inpatient situation as well as the outpatient world. The setting
selected would in turn suggest the choice of an appropriate implementation
mechanism: whether already-existing review boards can be used, whether or
not their membership or procedures need alteration to suit the particular
decisions to be made under the guidelines, or whether altogether new decisionmaking entities need to be created.
Once a field test is conducted, we will have an answer on practicability
that no amount of abstract debate can ever generate-or more likely, we will
receive a series of answers tailored to the situational variables (geographic,
demographic, professional, client) that are expected to be encountered in the
real world.